Saturday, December 31, 2016

Matthew T. ManginoGateHouse Media
December 30, 2016
As 2016 comes to a close, there are three criminal justice
issues that must be addressed in the coming year.

First, the uptick in homicides in major cities across the
country. Homicide rose in most big cities in America, continuing a trend for
police and criminologists that began last year, even as murder rates in most
cities are far below the levels of two decades ago, reported the Wall Street
Journal.

Sixteen of the 20 largest police departments reported a
year-over-year rise in homicides as of mid-December, a Wall Street Journal
survey found. Some cities had minor increases, while Chicago saw one of the
most dramatic jumps, with more than 720 murders — up 56 percent from 2015.

Nationally, the murder rate rose in 2015 for the first time
in nearly a decade, though it remains well below the murder rates of the 1990s.

Nationally, 37 of the 65 largest police agencies, including
ones in San Antonio, Las Vegas and Memphis, Tennessee, reported year-over-year
homicide increases as of Sept. 30, reported the Wall Street Journal.

Second, the state of the death penalty. The death penalty by
all accounts is on the decline.

This year juries handed down 30 new death sentences — a
dramatic decline from 49 in 2015. This year marked the fewest death sentences
since the U.S. Supreme Court reinstated capital punishment in 1976. That number
is also far below the 315 death sentences meted out in 1995.

In 2016, 20 people were executed in the U.S., down from 28
the previous year. The high water mark for the modern death penalty was 98
executions in 1999. At the rate of 20 executions a year and 30 new death
sentences, the 2,984 men and woman on death row will continue to climb without
any possibility that a majority of those will ever be executed.

In light of those ridiculous numbers, voters in three states
— California, Oklahoma and Nebraska — had an opportunity to abolish the death
penalty. All three states voted to reinstate or continue the death penalty.

Finally, the use of lethal force by police officers.

The number of fatal shootings by officers in 2016 remained
nearly unchanged from last year when a little fewer than 1,000 people were
killed by police.

Through this writing, law enforcement officers fatally shot
957 people in 2016 — close to three each day — down slightly from 2015 when 991
people were shot to death by police officers, according to The Washington Post.
The Post has an ongoing project that tracks the number of fatal shootings by
police officers.

Also of concern, nearly half of the 135 police officers
killed while working this year were fatally shot, including 21 police officers
who died in ambush-style attacks carried out across the country, reported Time
Magazine.

Although the number of officers killed in the line of duty
pales in comparison to 1930, the deadliest year on record for U.S. law
enforcement, when 307 officers were killed in the line of duty, according to
the National Law Enforcement Officers Memorial Fund.

Some law-enforcement experts attribute the rise in violent
crime to the widely debated view that increases are tied to the civil unrest
that roiled numerous cities after police killings of young black men, starting
with the 2014 death of Michael Brown in Ferguson, Missouri. The theory suggests
that many officers have shied away from confrontation, emboldening criminals.

The numbers do not bear that out. The police have certainly
not shied away from lethal force. Some bent on killing have targeted the police
and the utility of the death penalty as a deterrent to crime — namely murder —
is minimal if not nonexistent.

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by
McFarland Publishing. You can reach him atwww.mattmangino.com and follow him on Twitter
@MatthewTMangino

Friday, December 30, 2016

Crime in Newark, N.J., has declined this year to its lowest
level since 1967, reports NJ.com. Through Christmas, overall crime in the
city was down 13 percent from last year, according to police. Burglary was down
23 percent and vehicle theft 16 percent. Among violent crimes, robbery was down
23 percent, murder 10 percent (to 93) and rape 2 percent. Among standard crime
categories, only aggravated assault increased, by 10 percent. The declines
occurred amid highly publicized surging violent crime in some American cities,
including Chicago. Three years ago, Newark had the third highest murder rate in the nation, according to FBI
statistics.

Public Safety Director Anthony Ambrose and Mayor Ras Baraka credited the crime
declines to changes in the police department over the past year. Among other
department initiatives, the officials pointed to the department’s shooting
response team, which they said responds to calls of “shots fired” as if they’re
known to be homicides. The officials said assistance from the New Jersey State
Police, Essex County Prosecutor’s Office, the county Sheriff’s Office and the
U.S. Attorney Paul Fishman’s Office was also a major factor. Ambrose took the
job last January as part of a restructuring of the department that has included
more officers, increased street patrols and partnerships with citizen groups and clergy to promote community
policing.

Impartial Justice is chock full of analysis about what
constitutes a neutral, impartial, and unbiased decisionmaker. Part one focuses
on juries, part two judges, and part three noncourt settings. Part one and two
are of particular interest to the criminal justice practitioner and important
in light of recent action by the U.S. Supreme Court.

Kasper invokes Robert H. Jackson, a U.S. Supreme Court
justice who took leave from the Court to prosecute war criminals at Nuremburg.
Kasper quotes Jackson to bring focus to the fundamental aspect of the book, the
“right to fair trial is the right that stands guardian over all other rights.”

In June of this year, the U.S. Supreme Court ruled in
Williams v. Pennsylvania that a judge who had “significant, personal
involvement” in a case during his previous role as a prosecutor must recuse
himself when the case comes before the bench. Former Pennsylvania Supreme Court
Chief Justice Ronald Castille refused to recuse himself in a case involving a
death row inmate’s appeal where Castille had been in charge of the prosecution
years earlier while serving as district attorney. Castille ultimately joined
the opinion of the state supreme court, even writing separately to make clear
what he thought of the lower court’s ruling. In an opinion laced with withering
criticism, Castille suggested the trial court had become “unmoored from its
lawful duty.” He accused the defendant’s lawyers of sidestepping procedural
rules and “pursuing an obstructionist anti-death penalty agenda.” A defiant
Castille talked to the Associated Press before the U.S. Supreme Court argument:
“In Pennsylvania, we leave it up to the judge’s personal conscience. … I’ve
always been confident that I can be fair and impartial.” The Supreme Court
disagreed.

Kasper also explores juror bias. In doing so, he writes about
Batson v. Kentucky, the 1986 decision in which the U.S. Supreme Court ruled
that race-based discrimination in jury selection was unconstitutional and
required lawyers accused of it to provide a nondiscriminatory explanation. The
landmark decision in Batson was intended to eliminate racial bias in the use of
peremptory challenges in jury selection. “Hopefully, most prosecutors (and
lawyers generally) are beyond the crabbed notions of racial stereotypes,”
Kasper writes.

The 2016 Supreme Court decision in Foster v. Chatman
suggests that Kasper’s conclusion is a bit premature. The high court is still
sorting out the parameters of Batson. The Court ruled in favor of a black
Georgia death row inmate, Timothy Foster, convicted in 1987 of murdering an
elderly white woman. The Court found that prosecutors unlawfully excluded black
potential jurors when selecting an all-white jury. Chief Justice Roberts wrote
in Foster v. Chatman, “We are left with the firm conviction that the strikes
(of two of the African American potential jurors) were motivated in substantial
part by discriminatory intent.” Unfortunately, evidence of the sort that
surfaced in Foster is rare, and the Batson decision remains easy to evade.

Kapser also spends some time exploring due process under court
supervision, in jail, and before parole boards. Those issues are no better
understood after Kasper’s treatment, but generally Impartial Justice is timely
and informative. As a lawyer and municipal judge, Kasper’s erudite take on
timeless issues of fairness and impartiality has limitations, as he writes that
“being a lawyer judge does not wipe one clean of any and all biases … or
[require one] be ethical enough to be fair and impartial.

Tuesday, December 27, 2016

It was a grim holiday weekend in Chicago,
where the Chicago Tribune counted 61 shooting victims from Friday afternoon
to Monday night, the Christmas weekend. Eleven were killed and more than a dozen others were in
serious or critical condition. Authorities said eight of the shootings had
multiple victims, including two double homicides.

The number of people shot over the holiday weekend also
sharply outpaced recent years. During the Christmas weekend in 2015, 29 people
were shot and seven of them died. In 2014, when Christmas fell on a Thursday,
the four-day weekend included 35 people shot and seven people killed, according
to Tribune data.

One was an attack this year in the East
Chatham neighborhood that left two dead and five others wounded, and an
attack in the Austin neighborhood left two dead. The violence added to the
tolls this year in Chicago, where more than 700 homicides have been recorded
with more than 4,000 people shot — a level of violence not seen in Chicago
since the late 1990s. Last year, 488 people were killed in Chicago.

Sunday, December 25, 2016

On a crisp, clear morning 102 years ago, thousands of
British, Belgian and French soldiers put down their rifles, stepped out of
their trenches and spent Christmas mingling with their German enemies along the
Western front, reported Time Magazine.

Most accounts suggest the truce began with carol singing
from the trenches on Christmas Eve, “a beautiful moonlit night, frost on the
ground, white almost everywhere”, as Pvt. Albert Moren of the Second Queens
Regiment recalled, in a document later rounded up by the New York Times.
Graham Williams of the Fifth London Rifle Brigade described it in even greater detail:

“First the Germans would sing one of their carols and then
we would sing one of ours, until when we started up ‘O Come, All Ye Faithful’
the Germans immediately joined in singing the same hymn to the Latin words
Adeste Fideles. And I thought, well, this is really a most extraordinary thing ­–
two nations both singing the same carol in the middle of a war.”

Pope Benedict XV, who took office that September, had
originally called for a Christmas truce, an idea that was officially rejected.
Yet it seems the sheer misery of daily life in the cold, wet, dull trenches was
enough to motivate troops to initiate the truce on their own — which means that
it’s hard to pin down exactly what happened.

The next morning, in some places, German soldiers emerged
from their trenches, calling out “Merry Christmas” in English. Allied soldiers
came out warily to greet them. In others, Germans held up signs reading “You no
shoot, we no shoot.” Over the course of the day, troops exchanged gifts of
cigarettes, food, buttons and hats. The Christmas truce also allowed both sides
to finally bury their dead comrades, whose bodies had lain for weeks on “no
man’s land,” the ground between opposing trenches.

The phenomenon took different forms across the Western
front. One account mentions a British soldier having his hair cut by his
pre-war German barber; another talks of a pig-roast. Several mention impromptu
kick-abouts with makeshift soccer balls.

Saturday, December 24, 2016

Remember Farkus the school bully who pushed around Ralphie
and his friends in the holiday favorite "A Christmas Story." Finally,
Ralphie, tired of the harassment, stood up to Farkus and beat him up on the
school playground.
If Ralphie would have lived in Missouri after January 1, 2017 he'd be arrested,
charged with a felony and possibly sent to a juvenile detention facility. The
Missouri legislature has criminalized growing-up.
A Missouri statute that goes into effect the first of the year will no longer
treat fights in schools or on school buses as a minor offense, regardless of
the student's age or grade.
Instead, school resource officers and local law enforcement will now intervene
by arresting and charging students who get in schoolyard brawls.
When a school allows a SRO to arrest a student or refer a student to law
enforcement or juvenile court as a form of discipline-they are using the
juvenile justice system as a stand-in for school discipline and the consequence
can be dire.
This process of moving disruptive students from the principal's office to the
courthouse is known as the school-to-prison pipeline. When young people are
criminalized for their behavior in schools, exposed to law enforcement - and
the rest of the criminal justice system - at an early age, they become more
likely to interact with that system down the line.
According to the U.S. Department of Education's Civil Rights Data Collection
during the 2011-2012 school year, schools referred approximately 260,000
students to law enforcement, and approximately 92,000 students were arrested on
school property during the school day or at school-sponsored events.
The number of student suspensions and expulsions have also dramatically
increased in recent years. According to the CRDC, the Justice Policy Institute
reported that approximately 3.45 million students were suspended at least one
time during the 2011-2012 school year, and approximately 130,000 were expelled from
school during that same time period.
One of the common criticisms of SROs is, due to lack of training, they fail to
understand that the behavior of students may be a reflection of typical teenage
rebellion against authority or other behavioral challenges confronting
adolescents.
A 2009 study from the University of Tennessee in Knoxville found that students
in schools with officers were almost three times more likely to be arrested.
While some students are arrested and charged for violent offenses and
rightfully so, others are punished for minor disciplinary
infractions--being loud in the hallways, disrupting a class, or, as in
Ralphie's case, getting into a playground fight. The school building is best
suited for addressing these infractions - not the police station.
Regardless of where kids live, a single arrest doubles the likelihood that the
student will drop out, and kids who make a court appearance are four times more
likely to leave school early.
Students removed from class often fall behind in their school work and miss out
on valuable social interactions that contribute to their overall development.
In turn, they are more likely to engage criminal behavior that will lock them
into the system for life and drastically reduce access to education, employment
and housing - the collateral consequences of crime.
Mo Canady, executive director of the National Association of School Resource
Officers told the US News and World Report, "The number one goal of an
SRO, based on our training, should be to bridge the gap between law enforcement
and youth."
Unfortunately, the relationship between SROs and students appear to be more
antagonistic than positive. Fighting in the schoolyard shouldn't land a kid in
prison. A criminal record can do a whole lot more harm than a black eye.

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book "The Executioner's Toll, 2010" was
released by McFarland Publishing. You can reach him atwww.mattmangino.com and follow him
on Twitter @MatthewTMangino

Friday, December 23, 2016

A recent report from a criminal justice reform group said
Pennsylvania should stop automatically suspending driver’s licenses for drug
convictions not related to driving, reported the Pittsburgh Post-Gazette.

The report by the Prison Policy Initiative focuses on the 12
states, including Pennsylvania, and Washington D.C., that automatically suspend
driver’s licenses for all drug convictions.

Such policies are a relic of the War on Drugs and should be
changed, the report’s authors advocate.

These laws make it harder for those with such convictions to
access jobs, the report said.

The report noted that only Virginia, Michigan, Florida and
New Jersey suspend more licenses annually than Pennsylvania.

“These suspensions are part of a whole world of suspensions
that are completely unrelated to driving,” such as suspensions for child
support and unpaid court fines, said Joshua Aiken, policy fellow for the
Massachusetts-based Prison Policy Initiative.

License suspensions should be reserved for unsafe drivers,
he said, and not for other criminal justice issues.

“One unnecessary driver’s license suspension could throw any
person’s life off track. But for people who are formerly incarcerated, or
finishing probation/​parole, the consequences are especially harsh. At the very
time people should be finding stable housing, securing employment, and
reconnecting with their communities, drug-related license suspension laws
remove a critical avenue to success,” the report stated.

A bill introduced in the last legislative session by state
Rep. Ed Gainey, D-Lincoln-Lemington, that would have decriminalized small
amounts of marijuana also would have ended license suspension for that offense.
Mr. Gainey could not be reached.

Patrick Nightingale, a local criminal defense attorney and
marijuana reform activist, said in his view such suspensions are not a
deterrent to drug use, and in fact force people to drive with suspended
licenses.

“It’s absurd and I think it is having the opposite effect,”
Mr. Nightingale said.

“Every one of our clients who we handle a suspension for, it
is a barrier to employment,” said Morgan Jenkins, an attorney at the
Neighborhood Legal Services Association in Pittsburgh, an organization that
assists low-income people with legal issues.

In Ohio, a law passed earlier this year generally eliminated
the mandatory six months to five years license suspension for specified
drug-related offenses

Thursday, December 22, 2016

As of a week ago, 896 people have been shot and killed this
year by police officers across the country. Only last year, The Washington
Post began keeping track of officer-involved shooting deaths nationwide.
This year's number is slightly off pace with last year's total of 991 deaths.

The high-profile police killings of Michael Brown in
Missouri; Laquan McDonald in Illinois; Tamir Rice in Ohio; and Walter Scott in
South Carolina have brought intense scrutiny to police use of force protocols
and the resulting investigations.

Recently the Pennsylvania District Attorneys Association
(PDAA) got out in front of the curve with regard to officer-involved shootings.
The PDAA's Best Practices Committee established 16 guidelines dealing with
processing, investigating and public communications in officer-involved
shootings.

According to a PDAA press release, the 16 recommendations
include, but are not limited to, the following:

• Investigations should be independent.

To ensure the integrity of the investigation of an
officer-involved shooting, investigations should be conducted by an agency
separate and independent from the law enforcement agency involved in the
shooting.

• District attorneys should direct investigations.

Under the Commonwealth Attorneys Act, the district attorney
is charged with determining if any shooting is justified or if charges should
be filed.

• On-site safety and security is essential.

The first issue at every officer-involved shooting scene is
the safety and security of all those involved and the community.

• Utilize best-available technology to process the scene.

Officer-involved shooting scenes are often large and
confusing. Detailed evidentiary review and documentation of the scene is the
first and essential step to determining the facts.

• Communicate with the public.

The district attorney may give a preliminary report on the
status of the event after it happens, understanding that the detailed
investigation may uncover more evidence.

A potentially controversial portion of the recommended
policies provides that an officer involved in a shooting who is not criminally
charged "will not be named."

"There really is not a blanket policy," Dave
Arnold, Lebanon County district attorney and president of the PDAA told the
Pittsburgh Post-Gazette.

"There are times when, even if no one is charged, it
would make sense for the community, the officer, the department, to let that
officer's name be known," he said.

Allegheny County district attorney Stephen A. Zappala Jr.
recently told the Pittsburgh Tribune-Review that his practice has always been
to release names of officers involved in shootings. "It is a
recommendation—it's not binding," he said of the guidelines. "I don't
see what reason that would not be something of interest to the public."

The PDAA's recommendation comes on the heels of Gov. Tom
Wolf's veto of a bill that would protect the identity of officers involved in
shootings.

Wolf, whose decision overrode the Republican-backed
legislature, rejected the measure as an "anti-transparency" bill
whose premise jeopardizes the trust between citizens and government.

"I cannot allow local police department policies to be
superseded and transparency to be criminalized," Wolf said. "Local
departments are best equipped to decide what information is appropriate to
release to the public."

According to the Washington Post, of the 896 deaths
caused by police shootings so far this year, officers have been identified in
only 268 cases.

Releasing the identity of police officers involved in
shootings has been dealt with inconsistently by jurisdictions across the
country and can be attributed to the lack of national standards.

In an attempt to address the lack of national standards
governing police use of force, Chuck Wexler, director of the Police Executive
Research Forum, has proposed 30 "guiding principles" for police use
of force.

During the "Taking Policing to a Higher Standard"
forum earlier this year, Wexler proposed prioritizing the preservation of human
life, adopting de-escalation as a formal agency policy, quickly releasing
information about any use of force incident, and training officers that it is
their duty to intervene to prevent another officer from using excessive force.

The state of the law has made it difficult to indict police
officers, not to mention effectively prosecute them for inappropriate use of
deadly force.

In 1985, the U.S. Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985),
held that, under the Fourth Amendment, when a law enforcement officer is
pursuing a fleeing suspect, the officer may not use deadly force to prevent
escape unless the officer believes that the suspect poses a significant threat
of death or serious physical injury to the officer or others.

Justice Byron White wrote, "It is not better that all
felony suspects die than that they escape." He continued, "The fact
that the police arrive a little late or are a little slower afoot does not
always justify killing the suspect."

The Garner decision established that a police officer's use
of force be "objectively reasonable."

Reasonableness would be determined four years later by the
high court in Graham v. Connor, 490 U.S. 386 (1989). The court
ruled that a police officer who perceives a threat in the same manner as an
objectionably reasonable officer would perceive it, is justified in using
deadly force even if the shooting itself violates department policy or the
threat turns out not to exist.

Courts have universally deferred to the law enforcement
officer's own personal assessment of the threat at the time. The Graham
analysis essentially prohibits any second-guessing of the officer's decision to
use deadly force.

Although the PDAA has touted their efforts as a
first-of-its-kind for prosecutors nationwide there are other states and
jurisdictions taking on this issue. After an officer-involved shooting
inMassachusetts, a team of local and state police officers and officials from
the district attorney's office descends on the scene of the shooting to conduct
a multifaceted investigation.

Like Pennsylvania, Massachusetts law requires the
district attorney's office be involved in the investigation. In Massachusetts,
the district attorney's office, by statute, has the duty and authority to
direct all death investigation.

The International Association of Chiefs of Police has also
established an officer-involved shootings investigative protocol. Some of the
suggested protocols are not consistent with evolving protocols in other
jurisdictions including Pennsylvania. For instance, delaying the interview of
the involved officer has been widely rejected as an effective practice.

In October, Attorney General Loretta E. Lynch announced
several steps by the Department of Justice to enable nationwide collection of
data related to the use of force by law enforcement officers.

Lynch noted that President Barack Obama's Task Force on 21st
century policing called on law enforcement agencies to "collect, maintain
and report data ... on all officer-involved shootings, whether fatal or
nonfatal, as well as any in-custody death."

Special to the Law Weekly Matthew T. Mangino is of counsel
with Luxenberg, Garbett, Kelly & George. His book "The Executioner's
Toll, 2010" was released by McFarland Publishing.

Sunday, December 18, 2016

Just in time for Christmas, a gift from Pennsylvania Gov.
Tom Wolf to many of the 3 million Pennsylvanian’s with a criminal record.

A criminal record often carries a lifetime of consequences,
and even a minor criminal record can be a serious impediment to employment,
housing, education and public assistance. More than half the states nationwide,
including Ohio, allow some misdemeanor and even felony convictions to be
expunged or sealed. Pennsylvania has now joined the ranks of those states
offering its citizens a chance at redemption.

Act 5 of 2016 took effect last month and provides an
opportunity for people who have been convicted of most second- and third-
degree misdemeanors – such as driving under the influence and low level thefts
like shoplifting – to ask the court to seal their criminal record.

“The United States is the world leader in incarceration and
a criminal record often carries a lifetime of consequences that often lead to
poverty or re-incarceration,” Gov. Wolf said in a recent press release. “This
law is a commonsense, positive and unprecedented step to help Pennsylvanians
with minor or dated criminal records have a fighting chance at opportunities
for gainful employment.”

LIMITING ACCESS

Sealing a criminal record does not make the conviction
disappear; it only limits access to law enforcement and certain state licensing
authorities.

The main difference between sealing criminal records and
expungement is the way the records are reported and maintained. When an
expungement is granted under Pennsylvania law, an order of court accompanies
the expungement for all authorities to destroy the records, including
photographs, fingerprints, state police records and all county records.

Under the new Pennsylvania sealing statute, law enforcement
is required to maintain a record of the conviction, but is no longer allowed to
disseminate the records to anyone outside of law enforcement. The order of
court is labeled as “Limited Access.” This means the Pennsylvania State Police
may maintain the record, but may not disseminate the record to an individual, a
noncriminal justice agency or an internet website.

Pardon

A pardon is another option to erase a criminal record.
Although an expungement is very limited, a pardon can erase any conviction. A
pardon relieves an individual of the consequences of a criminal conviction. A
pardon constitutes total forgiveness by the governor, treats the crime as if it
never happened and allows a job applicant to deny she was ever convicted of the
crime.

Similar to Pennsylvania, Ohio adult convictions cannot be
“expunged” or completely erased from a criminal record. Ohio utilizes a similar
court ordered process known as “sealing a criminal record.”

In order to be eligible to have a criminal record sealed in
Pennsylvania, the following conditions must be met:

The benefits of having a criminal record sealed are
compelling. Most states make criminal history information accessible to the
general public through the internet, making it extremely easy for employers to
disqualify applicants based on old or minor convictions.

PUBLIC HOUSING

Many public housing agencies deny eligibility for federally
assisted housing based on even minor criminal convictions. Private landlords
can lawfully refuse to rent housing to persons with certain criminal
convictions.

Gun ownership is widely restricted after a criminal
conviction.

Even students with convictions for minor drug offenses can
feel the pain. The Higher Education Act of 1998 makes students convicted of
drug-related offenses ineligible for any grant, loan or work assistance.

This holiday season, if you, or someone you know, has a
minor misdemeanor conviction in Pennsylvania and $132 for the filing fee, treat
yourself to a Christmas gift that promises to bring more than just a smile to
your face.

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino

Saturday, December 17, 2016

During a prayer service at Emanuel African Methodist
Episcopal Church in Charleston, South Carolina, Roof killed nine African
Americans worshipers. Roof was quickly identified as the main suspect, and
became the focus of a massive manhunt that ended quickly with his arrest in
North Carolina. He later confessed that he committed the shooting in hopes of
igniting a "race war."

Roof was convicted of 33 charges, nine of them involving
hate crimes. Jurors began deliberating shortly after 1 p.m. on Wednesday. After
about two hours they asked to review some evidence and came back within minutes
with their verdict.

The next question is whether the jury will give Roof the
death penalty. The penalty phase of the trial is set to begin on Jan. 3.

Are there some people that are just so evil that the death
penalty is the only option? The death penalty has been on a steady downward
curve since it reached a high of nearly 80 percent of Americans supporting it
in 1994, according to Pew Research Center.

However, as W. James Antle III wrote in The Week, "Some
crimes are so heinous; there is no other just punishment for them."

Antle wrote that Roof is the posterchild for the death
penalty. He confessed to killing nine people praying is an historic church. The
execution-style killings were premeditated and displayed a "burning in his
(Roof's) heart."

Antle wrote many of the common objections to the death
penalty do not apply in Roof's case. There is no doubt about his guilt. "I
went to that church in Charleston and I did it," Roof confessed with a
laugh. "Did you shoot them?" a law enforcement officer asked.
"Yes," Roof replied, laughing again.

In the past, when support for the death penalty hovered at
the mid-60 percent support, survey participants, when asked about specific
cases like Timothy McVeigh or Saddam Hussein, support for executions rose above
80 percent.

In my book, "The Executioner's Toll, 2010," I
wrote about a condemned inmate who cried out for the death penalty - literally
- and deserved it as well.

John David Duty was in an Oklahoma penitentiary serving
three life sentences after being convicted of armed robbery, kidnapping, first
degree rape and shooting with intent to kill. It was December 2001 and Duty
decided he that he had served enough time in prison, he and been in prison
since 1978, and at the age of 49 he was not prepared to spend another 30 years
in prison.

Duty did not try to escape or even commit suicide. He
decided he would murder his cellmate, ask for the death penalty and have the
state of Oklahoma put an end to his miserable existence in the state
penitentiary system.

Duty's diabolical plan involved treachery, murder and the
heartless effort to compound the suffering of his victim's family.

About an hour after killing his cellmate Curtis Wise, Duty
sat down and wrote a cold blooded letter to Wise's mother.

The letter included the following: "Well by the time
you get this letter you will already know that your son is dead. I know now
because I just killed him an hour ago."

At some point after the murder, Duty wrote a second letter,
this one to the district attorney's office. He told the DA if you don't execute
me, "you're only telling me it's ok for me to kill again ...; Only next
time it will be a guard or staff member."

The death penalty was the only way to keep Duty from killing
again. Support for the death penalty may be waning but it still has utility in
some cases.

- Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book, "The Executioner's Toll, 2010," was
recently released by McFarland Publishing. You can reach him at mattmangino.com
and follow him on Twitter at @MatthewTMangino.

Friday, December 16, 2016

A new report co-authored by the Association of
State Correctional Administrators and The Arthur Liman Program at Yale Law
School reveals significant overrepresentation of black women in solitary
confinement across the United States.

Among 40 jurisdictions providing data (38
states, the federal system, and the Virgin Islands), black women constituted
24% of the total female incarcerated population but comprised 41% of the female
restricted housing population.

The report documents smaller but substantial
racial disparities in male isolation and estimates the disparities in each
jurisdiction. Its authors define restricted housing as “the separation of
prisoners from general population and in detention for 22 hours per day or
more, for 15 or more continuous days, in single-cells or in
double-cells.”

Wednesday, December 14, 2016

Some crimes are so heinous, there is no other just
punishment for them.

For an example, look no further than the trial of Dylann
Roof. Roof has confessed to murdering nine innocent Americans during a prayer
service at a historic black church in Charleston, South Carolina. He killed
them in cold blood while they prayed, in premeditated fashion, because of the
hatred burning in his heart.

Many of the common objections to the death penalty do not
apply in Roof's case. There is no doubt about his guilt. "I went to that
church in Charleston and I did it," he confessed with a laugh. "Did
you shoot them?" a law enforcement officer asked. "Yes," Roof
replied, laughing again.

Sentencing Roof to death would not illustrate structural
racism. Quite the opposite. It would enhance racial justice and signify
progress in a region of the country where the state did not always protect
African Americans from racist murderers. It would be a public affirmation that
black lives matter.

Wielding the noose infrequently makes its occasional uses a
more powerful statement of our society's intolerance of certain acts of evil
without allowing it to devalue life itself. Consider the countries that do not
normally have the death penalty but executed Nazi war criminals. Osama bin
Laden's death would have been an act of justice even if he could have been
apprehended peacefully.

Murder is a gruesome and barbaric business. Its perpetrators
deserve the ultimate punishment. But a society must try to balance its power
and right to impose that penalty with its need to avoid becoming an accomplice
to murder itself.

Monday, December 12, 2016

In Pennsylvania, once a defendant is no longer under the jurisdiction
of the state, either in jail or on probation the opportunity to seek
vindication is lost. Emma Turner’s conviction was overturned in
Philadelphia. Before she could get a new
trial her probation sentence ended.

According to Newsworks, prosecutors kept asking for more
time to respond until her probation was over, then they appealed. The matter
made its way to the Pennsylvania Supreme Court, which ruled in 2013 in
a precedent-setting case that since Turner was no longer on probation, she
doesn't have a case anymore. Under the PCRA
law, a person filing must be incarcerated, or on probation. However,
Turner's case took it a step further when the high court declared it not a
violation of constitutional rights when an appeal becomes moot, even if the
petition was originally filed while in state custody.

Or, as rendered by the court, Turner "has no protected
liberty interest in collateral review at this juncture because she is no longer
subject to a state sentence."

To Turner's attorney, who argued that her due process rights
should not be violated by dint of a short sentence, the court cited a state
precedent that said striking a reasonable balance between "society's need
for finality in criminal cases and the convicted person's need to demonstrate
there has been an error" can place limits on someone's ability to appeal.

Sunday, December 11, 2016

Ronald Bert Smith Jr. who killed an Alabama convenience
store clerk more than two decades ago was put to death on December 8, 2016 an
execution that required two consciousness tests as the inmate heaved and
coughed 13 minutes into the lethal injection, reported The Associated Press.

Smith was pronounced dead at 11:05 p.m., about 30 minutes
after the procedure began at the state prison in southwest Alabama.

Smith was convicted of capital murder in the Nov. 8, 1994,
fatal shooting of Huntsville store clerk Casey Wilson. A jury voted 7-5 to
recommend a sentence of life imprisonment, but a judge overrode that
recommendation and sentenced Smith to death.

Smith heaved and coughed repeatedly, clenching his fists and
raising his head at the beginning of the execution. A prison guard performed
two consciousness checks before the final two lethal drugs were administered.

In a consciousness test, a prison officer says the inmate's
name, brushes his eyelashes and then pinches his left arm. During the first
one, Smith moved his arm. He slightly raised his right arm again after the
second consciousness test.

The meaning of those movements will likely be debated. One
of Smith's attorneys whispered to another attorney, "He's reacting,"
and pointed out the inmate's repeated movements.

The state prison commissioner said he did not see any
reaction to the consciousness tests.

"We do know we followed our protocol. We are absolutely
convinced of that," Alabama Corrections Commissioner Jeff Dunn said
Thursday evening. "There will be an autopsy that will be done on Mr. Smith
and if there were any irregularities those will hopefully be shown or born out
in the autopsy. I think the question is probably better left to the medical
experts," Dunn said when asked if the movement's indicated the state's
process should be changed.

Alabama uses the sedative midazolam as the first drug in a
three-drug lethal injection combination. Smith and other inmates argued in a
court case that the drug was an unreliable sedative and could cause them to
feel pain, citing its use in problematic executions. The U.S. Supreme Court has
upheld the use of the drug.

Smith replied, "No ma'am" when asked by the prison
warden if he had any final words. A member of Wilson's family, who was not
identified, witnessed the execution. The victim's family did not make a
statement.

Wilson was pistol-whipped and then shot in the head during
the robbery, court documents show. Surveillance video showed Smith entering the
store and recovering spent shell casings from the bathroom where Wilson was
shot, according to the record.

In overriding the jury's recommendation at the 1995 trial, a
judge likened the slaying to an execution, saying Wilson had already been
pistol-whipped into submission and Smith ignored his pleas for mercy. Wilson
had a newborn infant at the time of his death.

"The trial court described Smith's acts as 'an
execution style slaying.' Tonight, justice was finally served," Alabama
Attorney General Luther Strange said in a statement after the execution.

U.S. Supreme Court justices twice paused the execution as
Smith's attorneys argued for a delay, saying a judge shouldn't have been able
to impose the death penalty when a jury recommended he receive life
imprisonment.

Four liberal justices said they would have halted the execution,
but five were needed to do so.

Smith's attorneys had urged the nation's highest court to
block the planned execution to review the judge's override.

Smith's lawyers argued a January decision that struck down
Florida's death penalty structure because it gave too much power to judges
raises legal questions about Alabama's process. In Alabama, a jury can
recommend a sentence of life without parole, but a judge can override that
recommendation to impose a death sentence. Alabama is the only state that allows
judicial override, they argued.

Saturday, December 10, 2016

In 2014, 18-year-old Michael Brown was shot and killed in Ferguson, Missouri by
police officer Darren Wilson. This incident was described by St. Louis County
Police Chief Jon Belmar as a "physical confrontation" that started
inside a police car and spilled onto the street.

Attorney Benjamin Crump, who represented the family of
Michael Brown at the time, told the USA Today, "Those who shoot and kill
suspects often escape prosecution because the criminal justice system places a
high value on an officer's word and often accepts their narrative of
events."

Crump's words were prescient. Charges were never filed
against Wilson and as we've learned during the course of the last month, even
when charges are filed against a police officer conviction is difficult.

In the last 30 days, juries in South Carolina, Oklahoma and
Ohio have failed to reach verdicts in cases involving police officers charged
with murder.

The trial of a South Carolina police officer accused of
murdering an unarmed black motorist was declared a mistrial this week. A video
showed Officer Michael Slager, who is white, shooting 50-year-old Walter Scott,
who is black, multiple times in the back as he ran away from the officer.

The jury deliberated for more than 22 hours over the course
of four days, when Judge Clifton Newman announced that the jury was hopelessly
deadlocked.

Contrary to original reports, the jury was not hung 11-1 in
favor of guilty. Jury foreman Dorsey Montgomery II, told the "Today
Show" that the jury had agreed that murder was not the appropriate charge
and they considered a lesser charge of manslaughter, but five jurors could not
vote for guilty, despite the fact that shooting a fleeing suspect in the back
has long been outlawed.

In 1974, the United States Supreme Court in Garner v.
Tennessee held that, under the Fourth Amendment, when a law enforcement officer
is pursuing a fleeing suspect, the officer may not use deadly force to prevent
escape unless the officer believes that the suspect poses a significant threat
of death or serious physical injury to the officer or others.

Justice Byron White wrote, "It is not better that all
felony suspects die than that they escape." He continued, "The fact
that the police arrive a little late or are a little slower afoot does not
always justify killing the suspect."

Last month, a judge declared a mistrial in the murder trial
of now retired Tulsa police officer Shannon Kepler. The officer was off duty
when he confronted his daughter's boyfriend and shot him in the chest and neck
killing him and endangering others.

The jurors said they were stuck at 11-1 in favor of guilty.
Kepler, who was off duty, claims that he was looking for his 18-year-old
daughter. When he found Lisa Kepler she was with her boyfriend. Kepler then
fired at the boyfriend with a .357-caliber revolver -- killing him.

This past month in Ohio, jurors hearing the case against
University of Cincinnati Police Officer Ray Tensing could not reach a unanimous
decision on charges of murder or voluntary manslaughter.

Hamilton County Prosecutor Joe Deters revealed that after 25 hours of deliberations the jury vote was 8-4 in favor of a voluntary manslaughter conviction. At least three jurors were willing to find Tensing, who is white, guilty of murder in the killing of the black motorist he shot during a traffic stop.

Jury nullification has long been accepted where a jury decides that the evidence supports conviction but renders a "not guilty" verdict because it feels that a conviction would be unjust.Are these decisions by individual jurors the product of conscientious deliberation or "juror nullification?"

Some jurors may find it simply unconscionable to convict a police officer and by holding out -- juror nullification -- they can take a stand on what they perceive as the unjust treatment of the police.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll, 2010," was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.

Thursday, December 8, 2016

Richard Miller the former mayor of Greenville, Pennsyslvania writes on his blog weconnectdots.net:

The most enlightening opinion is expressed by Matt Mangino,
a former prosecutor and the most practical criminal justice blogger in America.

Mr. Mangino writes that Comey should learn from the medical
profession.

“Do no harm,” Mangino published in a blog four days before
the election. “The harm that has been done goes beyond this election and
to the reputation of the FBI and the growing distrust of the American system of
justice.”

Crimes rates have plummeted in the U.S. since the
mid-1990s. Most of the credit for this remarkable trend has been given to
an enlarged criminal justice system—largely more police, tougher sentencing and
a massive prison complex.

But we have found a larger and much more powerful
explanation: A drop in interest rates and, in particular, long-term
interest rates, writes James Austin a criminologist and Gregory D. Squires a
professor of sociology at the George Washington University, in The Crime Report.

This has been the case in the U.S. at least since
1953. And it is almost a perfect correlation.

Today, both crime rates and interest rates are at historic
lows. Conversely, in the late 1970s and early 1980s, both reached historic
highs. Rarely does social science research yield such a high statistical
association and strong relationship between two phenomena, particularly when
they are not intuitively related.

What accounts for this startling finding? What does it
mean? And how might it inform public policy?

One critical implication is that lower interest rates mean
not just lower crime rates, but also greater economic prosperity.

Wednesday, December 7, 2016

The 19th Execution of 2016
A six-man “strap down” team eased William Sallie onto the
gurney in the death chamber at 9:38 p.m. Tuesday. Each kept his hands on the
condemned man until both legs, both arms and both shoulders were secured to the
bed, reported the Atlanta Journal Constitution..

Four nurses then prepared him for IVs.

Sallie, 50, had eaten all of the pizza he’d requested as his
last meal. Now he winced as the needles pierced his skin.

Ten minutes later, witnesses filed into the chamber. Some
were relatives of the man Sallie killed in 1990. The inmate raised his head,
and spoke:

“I am very, very sorry for my crime. I really am sorry,” he
said. “Man is going to take my life tonight, but God saved my soul. I’ve prayed
about this. I do ask for forgiveness.”

Georgia had just executed its ninth murderer in 2016, more
than any other state this year and the most in Georgia since capital punishment
was reinstated more than 40 years ago.

It was a quiet end to the life of a man who went on a
rampage one night in 1990, destroying the family of which he had been a part
for years. Sallie, in the midst of a breakup with his wife and having just l0st
custody of his son, shot his father-in-law six times, killing him, shot his
mother-in-law four times (she survived) and then abducted his wife and her
sister, sexually assaulting both of them over a period of several hours.

Tuesday, nine protesters stood vigil in the chilly night air
at an area just inside the entrance to the prison grounds in Jackson.

Sallie’s execution had been scheduled for 7 p.m., but
Georgia does not act until all courts have weighed in, which usually puts the
actual time of death well into the night and sometimes into the early
hours of the next day.

Tuesday afternoon, the Georgia Supreme Court unanimously
denied Sallie’s request for a stay of execution. His lawyers then petitioned
the U.S. Supreme Court.

As he waited, Sallie ate his pizza and visited with six family
members, four friends, three members of the clergy and four paralegals.

Sallie broke into his in-laws’ home in Bacon County — where
his wife, Robin, and their 2-year-old son, Ryan, were sleeping — after he lost
a custody battle and his wife filed for divorce.

In court filings and a clemency petition, Sallie’s lawyers wrote that the
domestic turmoil in William and Robin Sallie’s lives was much like that lived
by a juror who denied ever being embroiled in a volatile marriage, a custody
dispute or domestic violence.

When the woman was questioned during jury selection for the
Sallie murder trial, she said her marriages — four of them — had ended amicably.

Sallie’s lawyers said that was false, contending in their
clemency petition that the juror fought with soon-to-be ex-husbands over child
custody and support payments and lived with domestic abuse.

That juror also told an investigator for Sallie’s lawyers
that she pushed six fellow jurors to change their votes from life in prison to
death, making the jury’s decision unanimous.
To read more CLICK HERE

But what about Donald Trump? And more specifically, what
about his choice for attorney general, Sen. Jeff Sessions (R-Ala.)?

Sessions has called for more federal prosecutions of
marijuana growers and businesses in states where it is legal. He said
in April that it's important for the government to send a
"message with clarity that good people don't smoke marijuana." He
declared that "we need grownups in charge in Washington to say marijuana
is not the kind of thing that ought to be legalized, it ought not to be
minimized, that it's in fact a very real danger."

One of the major difficulties in the burgeoning pot industry
has long been the federal government's ability to prosecute businesses that the
states say are legal. Making Sessions the head of the agency in charge of
federal law enforcement and prosecutions has many in the cannabis community
quite concerned.

Saturday, December 3, 2016

A popular phrase among zealous law and order advocates is
“Do the crime, do the time.” Many law abiding citizens would be surprised to
know that there are thousands of people in this country who have done their
time and remain behind bars indefinitely.

Civil commitment gained support in state capitols around the
country a quarter century ago as cable news channels brought high profile sex
offenses into living rooms nationwide. A crime across the country had the same
emotional effect on viewers as a crime across the street.

Today, 20 states, along with the federal government, detain
some sex offenders for treatment beyond their prison time.

Minnesota has the highest population of civilly committed
offenders per capita in the nation, and the lowest rate of release. Costs have
soared as well. According to the New York Times, it costs about $125,000 per
resident per year, at least three times the cost of an ordinary prison inmate
in Minnesota.

Pennsylvania currently has eight men locked-up who have
served their complete sentence for a crime committed years ago. These men are
considered sexually violent predators, as determined by a civil court, and are
being detained indefinitely.

Pennsylvania’s neighbor to the west, Ohio, does not have a
civil commitment statute for sex offenders.

Civil commitment is not new. The procedure has been used for
decades with regard to the mentally ill and those with highly contagious
diseases. More recently it has been applied to sex offenders with a diagnosable
mental abnormality and a likelihood to re-offend.

In 1997, the U.S. Supreme Court found that civil commitments
were an appropriate state action. The high court upheld the Kansas Sexually
Violent Predator Act. The court found that the statute violated neither the
double jeopardy clause, punishing an offender for the same crime twice, or ex
post facto, punishment through a law applied retroactively.

In 2006, the federal government got into the civil
commitment business. Congress passed the Adam Walsh Child Protection and Safety
Act, which gave the federal government authority to seek civil commitment of
“sexually dangerous persons” already held in its custody. That authority, in
turn, allowed the government to seek to have individuals who are either
completing federal prison sentences, or incompetent to stand trial, remain in
federal custody indefinitely as a result of their “sexually dangerous” status.

To secure the continued detention of an individual
completing his sentence, the government must demonstrate by clear and convincing
evidence that the individual “is a sexually dangerous person.” If the federal
government can prove that, the individual is committed without a specific
period of detention, possibly for life.

In 2010, the Supreme Court ruled that the federal government
has the authority under the U.S. Constitution to require the civil commitment
of individuals already in federal custody. According to the Washington Post,
during the argument before the court, Justice Ruth Bader Ginsburg said, “You
are talking about endangering the health and safety of people. The government
has some responsibility.”

Just how far does the concept of protecting the health and
safety of the public reach? The state of Virginia uses risk assessment to
determine the duration of sentences. The Pennsylvania Commission on Sentencing
has been charged with incorporating risk assessment into the state’s sentencing
guidelines. The City of Philadelphia uses risk assessment to determine
appropriate supervision of probationers. Couple a high risk for violent
re-offending with a mental abnormality and could the civil commitment of
extremely violent predators be far off?

Stephen McCallister, a law professor and Kansas solicitor
general does not think it implausible. He told NPR in 2010, “Constitutionally,
it might be possible,” to extend the rationale for civil commitment to other
kinds of crimes. “I don’t have a constitutionally limiting line for what kinds
of mental disorders might be permissible and what (might) not. If they lead to
danger to others, potentially, they could be covered under such a law.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently
released by McFarland Publishing. You can reach him at mattmangino.com and
follow him on Twitter at @MatthewTMangino.

Friday, December 2, 2016

The Pennsylvania District Attorneys Association presented
guidelines to all 67 counties on how to investigate and prosecute
officer-involved shootings, reported the Harrisburg Patriot.

Dauphin County District Attorney Ed Marsico said, in some
ways, the added public and media interest in police-involved shootings is good
for transparency. Yet, video can shape judgment before an investigation is
complete.

“These investigations have changed,” Marsico said.
“Ferguson, Baltimore have put a different spin on them.”

Marsico said prosecutors need to evolve on the way an investigation
is handled. He was an active member of the Best Practices Committee for the
PDAA. Over the past several months, the committee comprised 16 guidelines to
best handle an officer-involved shooting.

“There are things that have been tested and are working for
prosecutors for these really important investigations,” he said. “(PDAA) wanted
to give guidance to prosecutors ... it’s really important that we have an
independent investigation.”

Hiring an independent agency or investigator is the main
recommendation for all counties to follow. Most counties, including Dauphin
County, already do this as standard procedure. However, there were never any
concrete policies in place.
Prosecutors are also encouraged to communicate with the
public more often, explain the process, and release preliminary findings to
help ensure transparency. Marsico said this was key during the Earl

Another lesson learned was the challenge of releasing video
to the public in a timely manner while holding the integrity of the
investigation.

Thursday, December 1, 2016

Almost everyone serving life in prison for crimes they
committed as juveniles deserves a shot at going home, said the U.S. Supreme Court. The high court’s message in these cases is
that children are different than adults when it comes to crime and punishment —
less culpable for their actions and more amenable to change, reported The Marshall Project. As such, court
rulings have determined all but the rarest of juvenile lifers are entitled to
“some meaningful opportunity to obtain release based on demonstrated maturity
and rehabilitation.”

The court left it up to states how to handle this year's new
ruling but suggested parole boards were a good choice. “Allowing those
offenders to be considered for parole,” Justice Anthony Kennedy wrote
in January, gives states a way to identify “juveniles whose crimes
reflected only transient immaturity—and who have since matured.” Most states
have taken this option, changing juvenile lifers’ sentences en masse from life without to
lifewith the possibility of parole.

But prisoner’s rights advocates and attorneys have begun to
argue whether parole boards, as they usually operate, may not be capable of
providing a meaningful opportunity for release. A handful of courts have agreed.

Last month, a New York state appeals court judge ruled that
the state’s parole board had not “met its constitutional obligation” when it
denied parole to a man who had killed his girlfriend when he was 16. Dempsey
Hawkins is now 54 and has been denied parole nine
times in hearings that, the court said, did not adequately weigh what
role his youth and immaturity had played in his crime.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.